The “Constitutional Interregnum”

 

 - by New Deal democrat



Is there anything that can be done with a President who has the support of 1/3+ one member of the Senate?  Since he can’t be impeached and convicted, which requires 2/3’s of the Sentate, and as of last July per the Supreme Court he is above the criminal law in exercising his Presidential powers, apparently not.



A President in those circumstances who decides to do whatever he wants creates a complete lapse in the Rule of Law. Josh Marshall wrote an excellent essay last week, which is very close to my thinking, describing a “Constitutional Interregnum.” Here is the gist of it in quotes:



[C]ivic democrats in the US have far too great an essentialism about the law and constitutional jurisprudence, especially under the corrupted federal judiciary as it now exists. 

[For example,] Trump v. United States … isn’t a decision I disagree with. It’s simply wrong. . . .  [W]e must disengage from the idea that this is what the law is. It’s not. These are fraudulent decisions. 

We are living in a moment in which the system of legal, interpretive legitimacy has fatally broken down. It’s been in its death throes for a decade. Now it’s no longer operating at all. That throne is empty of anything that commands our allegiance or claims to legitimacy. . . .  [W]e are in this period of interregnum in which we are grappling with a renegade, corrupt court operating outside the constitutional order as well as a renegade and lawless president.

Fundamentally, it means grappling with the corruption rather than living within it, living within its ideas and ground assumptions and perforce being softly governed by them.

There are good odds the final decisions in the courts [concerning the actions of T—-p and DOGE] will themselves be corrupt and unconstitutional, at least in part.

The fact that we’re operating way outside the express text and logic of the Constitution, and no president in history has thought any of this stuff was possible . . . . We’re waiting to see if the courts will follow the Constitution. And there’s a good chance they won’t.

We’re embarked on a vast battle over the future of the American Republic, in which the executive and much of the judiciary is acting outside the constitutional order.

 In a similar vein, citing John Locke, Johann Neem has argued:

Our republic is quickly becoming a tyranny. Should that happen, we should remember that we have not pledged allegiance to any regime but to a republic. If the republic falls, our pledge does not oblige us to transfer our allegiance to what replaces it. Indeed, it may require us to oppose it.

’Where-ever law ends, tyranny begins,’ Locke wrote in his Second Treatise on Government. . . . . Locke sought to find a way to resist a ruler who comes to power constitutionally but threatens that very constitution.

According to Locke, when a ruler demonstrates their disregard for the constitutional order, they lose legitimacy; we can treat them as we would a ‘thief and a robber.’ …. [W]hen ‘whosoever in authority exceeds the power given him by the law and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another.’

There are a few ways in which we are still operating, at least formally, within Constitutional bounds. 

In the first place, T—-p has not openly defied any Court orders, although there are suggestions that his appointees may have ignored several.

Secondly, and perhaps even more importantly, he has not openly defied Congress either. Rather, he is operating with the tacit approval of majorities in both the House and the Senate, who have simply chosen to ignore the intrusions on their power. Presumably at some point T—-p could cross a “red line” where they would object. But if Congress’s supine reaction is also driven by the fear of physical threats from T—-p’s brownshirts, then we are already beyond Constitutional checks and balances.

There have been some similar periods in the past. For example, it wasn’t clear at all that Jefferson had the right to make the Louisiana Purchase without Congressional approval. Congress looked the other way, and at some point retroactively agreed to it. Andrew Jackson famously defied the Supreme Court’s decision that the Cherokee Nation could not be forcibly uprooted from its land. Abraham Lincoln suspended habeas corpus, and argued that Dred Scot was not the law of the land, vs. only binding the litigants in that case. And FDR’s New Deal, which was struck down on many occasions by the Supreme Court before 1938, was enacted by an enthusiastic Congress.

But all of those pale in comparison with the present President for all intents and purposes declaring himself an omnipotent king. And since he has control of the armed forces and the US Marshals, it is not clear that any Congressional act, or any Judicial decision, could be enforced against him short of the use of actual physical force. The idea that we are in a period of Constitutional Interregnum appears well founded.